Tuesday, February 15, 2005

Reporters Not Above the Law

The New York Times reported today on the failed appeal of two reporters seeking relief from a federal district judge's ruling that they are in contempt of court for refusing to divulge the identity of sources. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit unanimously supported the district judge's ruling. Attorneys for the reporters are expected to request the full Appeals Court to hear the case, and if they lose yet again, they'll probably end up at the Supreme Court.

The two reporters, Judith Miller of the New York Times and Matthew Cooper of Time magazine, face 18 months in jail. If they provide the court the information legally required, they'll be released earlier.

The case originated with the exposure as a CIA employee of Valerie Plame, wife of former Ambassador Joseph Wilson. You may remember that Wilson was sent to Nigeria by the CIA to see if he could find any indication of yellow-cake uranium sales, or attempted sales, to Iraq. Wilson came back and said there was no such evidence, even though he admitted that he spent most of his time in cocktail discussions. He also lied that his wife had nothing to do with his being selected for the mission, but he was found out when a written document from her that proposed him for the job surfaced. Wilson wrote a book, attacked the President on various talk shows, and got his 15 minutes of fame. One of his charges was that his wife's identity was revealed by someone in the Administration as revenge against him.

The "Jane, Jane Bond" revelation was made in a column by Robert Novak, a conservative pundit with White House contacts. Since revealing the identity of a covert intelligence operative can be a crime under certain specific conditions, and in the midst of a partisan uproar from Democrats, an extensive investigation as to who leaked the lady's identity has been underway for some time.

Cooper, who wrote a story on the Plame case, and Miller, who researched it but didn't write a story, both apparently have information relevant to the investigation, if not direct knowledge of who did the deed. Oddly, it's unknown whether Novak, who certainly knows who leaked, has received a subpoena, or, if he did, how he responded.

If this was in fact a crime--and there's some question about that for several reasons--then the guilty person or persons should be identified and brought to justice. In order for that to happen, citizens who have information relevant to the investigation may be required to give that information to investigators or courts. If they refuse, they go to jail. Nothing new, unusual, or unconstitutional about that.

But hold on a minute, the reporters say. We're journalists, and we're above all that. They seem to believe that when the First Amendment was written to say "Congress shall make no law...abridging the freedom...of the press" what it really meant was that reporters are above the law that applies to commoners. To the contrary, no court has ever held that reporters have an unrestricted right to keep secret the names of those involved in crimes or the details of the crimes themselves.

A Supreme Court case referred to in the New York Times story, Branzburg v. Hayes (1972), is relevant. From the Court's decision:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof. ... Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. ... Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.

The attitude of most reporters and editors is that they have some superior right to publish anything they can find, without regard to the law or potential damage to other people or to their country. Seymour Hersh is but one of the worst examples, as evidenced most recently by his disclosures of clearly classified information regarding special operations activities, among other things. He and other reporters who claim some mythical special status have long reveled in publishing this kind of information, making themselves wealthy and famous in the process.

I have no problem with shield laws for reporters that give them a limited special status. I have no problem with reporters using confidential sources, assuming they can be trusted not to invent them. And I have no problem with investigators and courts having to jump through a few hoops to indicate that the information reporters may have is relevant. Ultimately, however, reporters have to be just like you and me--when they have knowledge of criminal activity or the identity of criminals, they participate in the legal system or they go to jail.

What I really want to know is what's happening with Robert Novak? He knows who revealed Plame's identity, and I certainly hope he's been asked by now. If he was asked and refused to answer, I hope his ample butt is parked in a cell somewhere.

1 Comments:

Tom, I think the reason that reporters feel there is such a privilege is because in most states of the union there is a privilege of some kind or another that affords them protection in some matters, but which is not easy to tell. The judge who concurred in the DC opinion analyzed this aspect of things quite well. The opinion is 83 pages, but his thoughts start on page 43.

You can access the complete ruling at this link. http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf